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Full Text of Decision

31976

SERVICE DATE - DECEMBER 21, 2001

EB

SURFACE TRANSPORTATION BOARD

DECISION

Finance Docket No. 32432

NEW ENGLAND CENTRAL RAILROAD, INC.

-ACQUISITION AND OPERATION EXEMPTION-

LINES BETWEEN EAST ALBURG, VT AND NEW LONDON, CT

Decided: December 18, 2001

We are denying a petition to reopen this proceeding that was filed by an employee of the
National Railroad Passenger Corporation (Amtrak).

BACKGROUND

In a decision in this proceeding that was served on December 9, 1994, the Interstate
Commerce Commission (ICC) granted the New England Central Railroad, Inc. (NECR) an
exemption from the requirements of 49 U.S.C. 10901, permitting it to acquire and operate
approximately 325 miles of rail line owned by the Central Vermont Railway, Inc. (CV) between
East Alburg, VT, and New London, CT. (1) As a condition to granting the exemption, the ICC
required NECR to assume CV's trackage rights obligations to Amtrak over the Connecticut
River portion of the line. Amtrak and NECR subsequently negotiated an agreement for Amtrak
to operate passenger service over a portion of the line between St. Albans, VT, and Palmer, MA.
Amtrak currently operates its "Vermonter" trains pursuant to that agreement.

On June 21, 2001, Mr. W. A. Klinger (petitioner), an Amtrak employee, filed a petition to
reopen the 1994 proceeding. He states that Amtrak suspended operating its Vermonter trains on
or about May 31, 2001, and claims that the suspension was precipitated by significant
deterioration of the track which caused increases in the running time of trains. Petitioner asserts
that, even though NECR was repairing the track, it was unclear when service would be restored.

Mr. Klinger indicates that he previously expressed concerns in filings before the ICC in
1994 with regard to protecting Amtrak's rights to operate over the line. He claims that the ICC
imposed a condition designed to protect Amtrak's interests and to ensure that NECR maintains
the line so that Amtrak could operate passenger service over it at 59 miles-per-hour. (2) Petitioner
requests that we reopen this proceeding to determine why the line has not been maintained as the
ICC originally intended. He also asks that we determine how best to protect Amtrak's operating
rights and prevent service interruptions in the future.

NECR responded on August 21, 2001. (3) The carrier states that, since acquiring the line, it
has typically conducted programmed maintenance and repair work in the late Spring, after the
conclusion of the harsh New England winter. After completing its own programmed
maintenance and repair, NECR states, it would normally be notified by Amtrak as to when
Amtrak would inspect that portion of the line used for passenger service to determine what
additional repairs would be needed to operate the line at FRA Class 3 standards. NECR would
then assemble its maintenance employees, equipment and supplies to follow Amtrak's track
inspection car and repair any defects found by it.

NECR claims that this system worked well until this year when it was notified by Amtrak
that it would inspect the track on May 31, 2001, before NECR had finished its own programmed
maintenance and repairs. NECR maintains that Amtrak did not provide it with sufficient notice
so that it could assemble and prepare its employees to make immediate repairs on any additional
defects uncovered by Amtrak's more detailed inspection. NECR notes that in previous years
Amtrak would, if it found additional defects during its inspection, operate over the affected
portions of the line at reduced speeds until repairs were completed. Rather than do so this year,
however, Amtrak suspended rail passenger service and substituted bus service.

NECR states that it completed repairs 4 days after Amtrak found the original defects.
Nonetheless, NECR asserts, Amtrak decided to inspect the line again on June 8 and 9, using
criteria designed for 160- and 200-mile per hour track, (4) and determined that additional repairs
were needed. NECR indicates that, after it made the additional repairs, Amtrak resumed full
passenger service over the line on June 24, 2001. (5)

DISCUSSION AND CONCLUSIONS

There is not a sufficient basis here for reopening this proceeding. First, the applicable
statutory provisions specifically authorize Amtrak to enforce its rights with regard to the rail
passenger services it provides, and do not permit anyone else to do so. (6) The statute authorizes
Amtrak to enter into agreements with rail freight carriers to use the carriers' facilities to conduct
passenger service ( 49 U.S.C. 24308(a)). (7) Under section 24308(a)(2)(A), the Board is authorized
to enforce Amtrak's rights to use a freight carrier's facilities and to resolve disputes instituted by
Amtrak against carriers involving the facilities and services provided to Amtrak. (8) In this regard,
the statute specifically states that "Amtrak shall seek immediate and appropriate legal remedies
to enforce its contract rights when track maintenance on a route over which Amtrak operates falls
below the contractual standard." 49 U.S.C. 24308(a)(4) (emphasis added). The statute permits
only Amtrak - which has not complained to us - to institute actions to redress inadequate track
maintenance. (9) Although we understand Mr. Klinger's concerns here, the controlling laws simply
do not countenance actions brought by individual parties such as petitioner.

Second, even if the statute permitted us to consider Mr. Klinger's request, we are not
convinced that there is any reason to reopen the proceeding now. Although the line apparently
was not in satisfactory condition for passenger service from May 31 to June 24 (during which
time it was inspected by Amtrak on at least 3 occasions), it was subsequently repaired. The line
now exceeds the standards established in the operating agreement, and the Vermonter passenger
train service appears to have been operating satisfactorily since that time. Furthermore, there has
been no indication that there are any ongoing problems with regard to the condition of the
involved track. In light of this, reopening the proceeding at this time would serve no useful
purpose.

In addition, Mr. Klinger has neither claimed nor shown that there is material error, new
evidence or substantially changed circumstances that warrant reopening this proceeding, as
required by the Board's procedures. 49 CFR 1115.4. (10)

In light of the above, we will deny Mr. Klinger's petition to reopen this proceeding.

NECR notes that the State of Vermont and Amtrak entered into a revised agreement at
the end of June 2001, whereby Vermont will pay Amtrak an additional $600,000 per year to
operate passenger service in the State of Vermont. The carrier also notes that it is currently
negotiating with Amtrak about service arrangements over the line.

7. This provision was enacted as section 402(a) of the Rail Passenger Service Act of 1970,
and codified at 45 U.S.C. 562(a). In Pub. L. No. 103-272, 108 Stat. 745, enacted on July 5,
1994, section 402(a) was recodified in its present form as 49 U.S.C. 24308(a). Under section
205 of the ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803, enacted
December 29, 1995, any reference to the "Interstate Commerce Commission" contained in the
Act and other federal statutes is deemed to refer to the Board.

obligates NECR to maintain
the line as Amtrak directs and gives Amtrak control over the level of maintenance on the line.
Amtrak decides when it will inspect the line and whether the line meets the maintenance
standards set forth in the agreement. Amtrak also decides whether to suspend service or operate
at reduced speeds over portions of the line.

10. We also note that Mr. Klinger apparently did not serve a copy of his petition on
Amtrak and other parties to this proceeding, as required by 49 CFR 1104.12.